In Alabama, Senate Race Raises Disclosure Concerns

For months, eyes have been focused on the upcoming special election in Alabama to fill the Senate seat left vacant by Attorney General Jeff Sessions. The special election — slated for December 12 of this year — is highly contested, with some polls[3] indicating that Republican candidate Roy Moore has pulled back into a narrow lead.

Much of the focus in this race has centered on doubts regarding Moore’s fitness for office, which was called even further into question in recent weeks following multiple deeply disturbing allegations[4] of sexual assault and child predation. For those interested in campaign finance reform, however, the race has caused jaws to drop for an additional reason: the lack of disclosure of campaign donors. Both Moore[5] and Democrat Doug Jones[6] are heavily funded by super PACs — which of course, post-Citizens United, is not shocking in and of itself. Super PACs are required to disclose their donors, but those donors are frequently nonprofit organizations that are not, themselves, required to disclose their donors — resulting in a flood of “dark money” in recent elections. In the Alabama race, one super PAC, Highway 31, is raising eyebrows through a different and particularly novel method of obscuring its funds.

Highway 31 is the largest independent spender[6] in the Alabama race and has reported spending nearly $2 million on ads supporting Jones. In fact, NBC News recently reported that Jones is outspending Moore[7] by nearly ten-to-one over the airwaves. Astonishingly, however, its November 30, 2017 filing[8] with the Federal Election Commission — which was expected[6] to be Highway 31’s first itemized disclosure of its donors and expenditures — shows two long columns of zeroes. That is, Highway 31 has not received or spent any money at all. The filing also shows that Highway 31 owes seven figures[8] in debts and obligations.

Highway 31 is funding its ads completely on credit. How it will pay back its debts — or, put differently, who will pay those debts — will not be clear until after the election. Per the FEC’s reporting schedule[9], Highway 31 need not submit another filing until January. Voters will simply have no way of deciphering the identity of Highway 31’s donors until then.

Putting the candidates aside, we should be concerned about the precedent that Highway 31’s fancy footwork sets for future races. Disclosure of donors is critical, no matter which side of the aisle you fall on. Voters have a right to know who is funding the advertisements intended to persuade them to vote in a particular way, and who is most likely to try to influence the votes of their elected representatives. It is worth remembering that, even though Citizens United completely eviscerated crucial campaign finance regulations, it nevertheless upheld disclosure[10], observing that disclosure “enables the electorate to make informed decisions and give proper weight to different speakers and messages.” This latest episode only underscores the need to expand transparency in political spending.